Opinion
No. 1362 C.D. 2011
01-20-2012
Clarence Kunkleman, Petitioner v. Workers' Compensation Appeal Board (Textile Chemical Corp.), Respondent
BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JOHNNY J. BUTLER, Judge
This case was decided before Judge Butler's term ended on January 2, 2012.
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Clarence Kunkleman (Claimant) petitions for review of an adjudication of the Workers' Compensation Appeal Board (Board) denying his reinstatement petition. In doing so, the Board affirmed a decision of a Workers' Compensation Judge (WCJ) that Claimant voluntarily left his employment when he retired from the workplace. Claimant contends he was forced into retirement and has continued to seek employment. Discerning no error by the Board, we affirm.
Claimant worked for Textile Chemical Corporation (Employer) for approximately forty years. In 1999, he suffered a work injury to his right shoulder and began receiving total disability benefits pursuant to the Workers' Compensation Act (Act). Claimant's disability benefits were modified to $78.64 per week on December 1, 2007, when he returned to work with Employer, and he continued to work until May 26, 2009. His employment ended upon execution of a voluntary separation agreement and release with Employer (Agreement). On August 4, 2009, Claimant filed a reinstatement petition contending he was forced into retirement by his work-related injury.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§1-1041.4, 2501-2708.
Claimant also sought to amend the description of his injury, but withdrew his request prior to the hearing before the WCJ. Additionally, Employer had filed a suspension/termination petition. The WCJ denied the termination petition and dismissed the suspension petition as moot following the hearing. These determinations are not before the Court.
At the hearing before the WCJ, Employer presented the testimony of its controller, Victoria Kochman. She testified that in 2007 Claimant returned to work at a light-duty position in a warehouse unloading trucks and that Claimant had never asserted that he could not do this job. She also testified that Employer had no plans to eliminate Claimant's position in the warehouse.
Kochman then explained that in 2009, Employer made an offer to all employees age 62 years or older. Under the offer, employees who retired would receive one week of pay for every two years of service as well as payment for unused vacation time. Claimant, who was 74 years old, accepted the offer and received $16,488 in severance pay and $1,806 in unused vacation time. Employer has not replaced Claimant's position; his work has been divided between the remaining employees.
The Agreement was entered into evidence. Reproduced Record at 237a-240a (R.R. ___). It states, inter alia, that the Agreement is "a full and final release of any and all claims, actions, charges, demands and causes of action, in law or in equity, whether known or unknown, suspected or unsuspected, that precede the [r]elease [d]ate." R.R. 238a. It recites that Claimant was given 45 days to consider the Agreement before signing it and that he could revoke the Agreement within 7 days of execution.
Claimant testified. He stated that on May 14, 2009, Denny Eisenhofer, vice-president of operations, gave him a copy of the four-page Agreement; Claimant's union steward was also present. Eisenhofer told Claimant "to look at it, sign it and bring it back the next day." R.R. 66a. Claimant stated that there were "so many sheets. I didn't understand it." R.R. 78a. He did not ask anyone to explain the document. In any case, Claimant acknowledged that he did understand that by signing the Agreement his employment would end. Claimant stated that he believed that he could reapply for his job after 20 weeks. Claimant also testified that he knew that he could keep his job if he chose not to sign the Agreement.
Claimant was a member of Teamsters Local Union 429.
Claimant stated that after his employment ended he began to collect unemployment compensation, and he did so for about 11 weeks. Claimant also testified that he sought employment at a car dealership but did not complete a job application when he learned that there were no openings. Claimant testified that he supports himself through Social Security benefits and his pension.
The WCJ denied Employer's request to enter into evidence the Unemployment Compensation Board of Review's decision on Claimant's application for unemployment benefits.
In response, Eisenhofer testified on behalf of Employer. He explained that Employer offered early retirement to all employees over age 62. The offer was made after it was reviewed and accepted by the union. Had Claimant not accepted the offer, his job would have remained available to him. Eisenhofer testified that when he gave the Agreement to Claimant on May 14th, he explained the terms of the offer and advised Claimant to review the Agreement on his own. Claimant returned the following day and signed it in Eisenhofer's presence. Claimant's sole inquiry concerned how soon he would receive payment.
The WCJ found, as fact, that Claimant read the Agreement. Although Claimant testified that he did not understand the Agreement, he nevertheless acknowledged that he did understand that he was terminating his employment. Claimant believed that he could reapply for his position, but he provided no explanation to support this belief. The WCJ found Claimant left his job voluntarily. The WCJ also found that Claimant was not actively seeking employment.
The WCJ held that Claimant's burden was to prove that Employer forced him into retirement or that he continued to seek other employment. Because Claimant's evidence did not satisfy either burden, the WCJ denied Claimant's reinstatement petition.
Claimant appealed to the Board asserting, again, that he had been forced to retire and was actively seeking employment. The Board affirmed the WCJ, and Claimant petitioned for this Court's review.
Our scope of review of an order of the Board is limited to determining whether the necessary findings of fact are supported by substantial evidence, whether constitutional rights were violated or an error of law was committed. City of Philadelphia v. Workers' Compensation Appeal Board (Brown), 830 A.2d 649, 653 n.2 (Pa. Cmwlth. 2003). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Mrs. Smith's Frozen Foods Company v. Workmen's Compensation Appeal Board (Clouser), 539 A.2d 11, 14 (Pa. Cmwlth. 1988).
Before this Court, Claimant argues that the Board erred. He contends that the evidence shows he did not request retirement; did not have sufficient time to review the Agreement; and had planned to work as long as he was physically able to do so. Because his position was not filled after he retired, Claimant argues that his job was eliminated. Finally, he claims that the fact that he applied for unemployment benefits and searched for a job at an automotive dealership shows that he was actively seeking work. Employer counters that Claimant's own testimony fails to support these arguments.
Because Claimant ended his employment relationship and is receiving a pension and Social Security benefits, he is "presumed to have voluntarily left the workforce." Polis v. Workers' Compensation Appeal Board (Verizon Pennsylvania, Inc.), 988 A.2d 807, 811 (Pa. Cmwlth.), appeal denied, 606 Pa. 690, 997 A.2d 1180 (2010). To overcome this presumption Claimant was required to establish "(1) he was seeking employment or (2) the work-related injury forced him to retire." Id.
To be considered "forced into retirement" a claimant must "demonstrate that he was forced out of the entire labor market, not just his pre-injury job." Pries v. Workers' Compensation Appeal Board (Verizon Pennsylvania), 903 A.2d 136, 143 (Pa. Cmwlth. 2006).
Claimant argues that the Polis standard applies only where an employee has admitted that he has no intention of seeking further employment. In support of this claim he cites to Vitelli v. Workmen's Compensation Appeal Board (St. Johnsbury Trucking Co.), 630 A.2d 923 (Pa. Cmwlth. 1993), and Dugan v. Workmen's Compensation Appeal Board (Fuller Company of Catasauqua), 569 A.2d 1038 (Pa. Cmwlth. 1990). These cases are distinguishable.
Vitelli and Dugan address the employer's burden of proof in a modification petition governed by Kachinski v. Workmen's Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987). In a Kachinski case, the employer must establish job availability through evidence of a referral to an available job suitable to the claimant's restrictions. Where the claimant has admitted to retiring, the employer does not have to prove job availability. Vitelli, 630 A.2d at 926; Dugan, 569 A.2d at 1040.
In 1996, the General Assembly amended Section 306(b) of the Act, 77 P.S. §512, by adding subsection 2. This amendment eliminated the Kachinski requirement that an employer must refer an injured employee to an actual job. Under the amendment, the employer need only present evidence of earning power. See Riddle v. Workers' Compensation Appeal Board (Allegheny City Electric, Inc.), 603 Pa. 74, 82, 981 A.2d 1288, 1292-93 (2009). The Kachinski test remains relevant only where the claimant's injury occurred prior to June 24, 1996. Id. at 83 n.8, 981 A.2d at 1293 n.8. Because Claimant's injury occurred in 1999, Kachinski is irrelevant. Further, the question of Claimant's earning power is not before us, because Claimant chose to leave his job with Employer.
Act of June 24, 1996, P.L. 350 (adding subsection 2 to 77 P.S. §512). --------
In sum, the Board properly applied the Polis standard to Claimant's reinstatement petition. Claimant had the obligation of proving the work injury forced him to retire or that he has continued to seek employment. Polis, 988 A.2d at 811.
Claimant produced no evidence that he was forced from his employment. Employer cannot be faulted for Claimant's failure to review the Agreement he signed or his failure to consult with his union representative about its significance. In any case, Claimant admitted that he knew he was severing his employment by signing the Agreement. There was no evidence that Claimant signed the Agreement because he feared his position was going to be eliminated. To the contrary, Claimant testified that he knew he could continue working if he did not sign the Agreement. Although Employer has not filled Claimant's position, this after-the-fact decision on how to manage its personnel is irrelevant. Simply, Claimant failed to establish he was forced from his employment.
The only evidence Claimant presented in support of his claim that he continued to seek employment was (1) his filing for unemployment benefits and (2) his inquiry at one car dealership at which he did not submit a job application.
In Pennsylvania State University v. Workers' Compensation Appeal Board (Hensal), 948 A.2d 907, 911 (Pa. Cmwlth. 2008), we explained that "claimant has to show that he has honestly undertaken efforts where an employer knows that he is seeking employment." This means he must establish he was "actively applying for employment." Id. Therein, we held that searching the internet, reading the classified ads in the newspaper and calling two potential employers did not constitute a commitment to continue working. Here, Claimant did less; he contacted one dealership. This was inadequate under Hensal. Claimant actively sought unemployment benefits, but this is not, in itself, proof that he remains committed to the workforce.
For these reasons, we affirm the Board's adjudication.
/s/_________
MARY HANNAH LEAVITT, Judge ORDER
AND NOW, this 20th day of January, 2012, the order of the Workers' Compensation Appeal Board, dated June 20, 2011, is hereby AFFIRMED.
/s/_________
MARY HANNAH LEAVITT, Judge